Positive Obligations under the European Convention on Human Rights
5:00pm - 6:00pm /
Thursday 10th March 2022
/ Online event
Type: Webinar /
Category: Department
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Associate Professor Vladislava Stoyanova, Faculty of Law, Lund University
The development of positive obligations has been one of the hallmarks of the work of the European Court of Human Rights (ECtHR or the Court) in interpreting the European Convention on Human Rights (ECHR). Various issues from various spheres of life have been reviewed by the Court as involving possible breaches of positive obligations. Given the extensive regulatory functions of the State and the enormous breadth of state activities, any harm could potentially be a ground for making an argument that the State failed to fulfil its positive human rights obligations by failing to prevent or mitigate harm or risk. As a result, it is rather unclear under which conditions positive obligations may be triggered and how far-reaching they may be, given how difficult it is to draw the boundaries of state responsibility for omissions. The difficulties in determining and delimiting the role of the State in the contemporary society contribute to this uncertainty.
The specific concern of my presentation will be then how competing human rights obligations owned by the State need to be taken into consideration in the determination of the scope and the content of positive obligations, so that a possible protective overreach can be prevented. I will first explain that obligations need to be specified so that tensions and competitions between obligations become cognizable. Once competing obligations become cognizable, they should be denoted a distinctive and special role (in contrast to competing general public interests) in the assessment of the reasonableness of the positive obligations. Then I will then discuss considerations that can be relevant to addressing the tension between positive obligations and other (both positive and negative) human rights obligations corresponding to absolute, strictly qualified and qualified rights. These considerations include respecting the equal moral status of each affected individual, the relative importance of the affected interests grounding rights as related to the relative importance of the corresponding obligations, whether actions or omissions form the content of the obligations, and the determinacy of the harm and the affected individuals. Finally, while acknowledging the difficulties, it is proposed that the obligations can be farmed in such a way in terms of content and scope, so that accommodation is possible.
This event is part of the International Law and Human Rights Unit.
The development of positive obligations has been one of the hallmarks of the work of the European Court of Human Rights (ECtHR or the Court) in interpreting the European Convention on Human Rights (ECHR). Various issues from various spheres of life have been reviewed by the Court as involving possible breaches of positive obligations. Given the extensive regulatory functions of the State and the enormous breadth of state activities, any harm could potentially be a ground for making an argument that the State failed to fulfil its positive human rights obligations by failing to prevent or mitigate harm or risk. As a result, it is rather unclear under which conditions positive obligations may be triggered and how far-reaching they may be, given how difficult it is to draw the boundaries of state responsibility for omissions. The difficulties in determining and delimiting the role of the State in the contemporary society contribute to this uncertainty.
The specific concern of my presentation will be then how competing human rights obligations owned by the State need to be taken into consideration in the determination of the scope and the content of positive obligations, so that a possible protective overreach can be prevented. I will first explain that obligations need to be specified so that tensions and competitions between obligations become cognizable. Once competing obligations become cognizable, they should be denoted a distinctive and special role (in contrast to competing general public interests) in the assessment of the reasonableness of the positive obligations. Then I will then discuss considerations that can be relevant to addressing the tension between positive obligations and other (both positive and negative) human rights obligations corresponding to absolute, strictly qualified and qualified rights. These considerations include respecting the equal moral status of each affected individual, the relative importance of the affected interests grounding rights as related to the relative importance of the corresponding obligations, whether actions or omissions form the content of the obligations, and the determinacy of the harm and the affected individuals. Finally, while acknowledging the difficulties, it is proposed that the obligations can be farmed in such a way in terms of content and scope, so that accommodation is possible.
This event is part of the International Law and Human Rights Unit.